Expert Permitted to Rely on Consultant Who Conducted “Survey” Even Though Consultant Was Not a “Survey” Expert

Zurn Industries, Inc. (“Zurn”) moved to exclude Sloan Valve Company’s (“Sloan”) consultant witness and other testimony based on the consultant’s investigation. The patent-at-issue, U.S. Patent No. 7,607,635, entitled “Flush Valve Handle Assembly Providing Dual Mode Operation” (the “‘635 Patent”), pertains “to flush valves for use with plumbing fixtures such as toilets, and more specifically to improvements in the bushing of the actuating handle assembly that will provide for user-selectable, dual mode operation of the flush valve.” As explained by the district court, the improvement is a mechanism that allows a user to select one of two flush volumes based on the direction of actuation of the handle: a full flush volume to evacuate solid waste from the bowl or a reduced flush volume to remove liquid waste.

The district court explained that Sloan hired Leone Flosi of Quest Consultants Int’l Ltd. (“Quest”) to perform an investigation of bathrooms containing either Sloan or Zurn manual dual flush valves and handles at Sloan’s damage expert, Mr. Bero’s, direction. Specifically, Sloan hired Mr. Flosi and Quest to “assist in estimating the ratio of collateral product sales relative to manual dual-flush flushometer valves.” Mr. Bero used this data to project and calculate the profits that Sloan allegedly lost on collateral sales of unpatented products.
Quest began its investigation in the case with a list of approximately 200 sites that Sloan believed contained either a Sloan or Zurn manual dual flush valve or handle covered by the ‘635 Patent and installed between 2005 and 2012. Based on this list, in addition to photographs, the Quest investigators completed an onsite log, which confirmed the date and time of the site visit, the name of the agent, the name of the site, the region and facility information, the identity and number of each type of bathroom, the number of each plumbing fixture in each bathroom, and the total number of photos taken for each site. The investigation revealed that 58 of the 81 photographed sites contained a majority of toilets with Sloan MDF valves.

Zurn challenged Mr. Flosi and Quest’s investigation on two grounds. First, Zurn contended that Mr. Flosi and his company conducted a “survey,” despite the fact that neither he nor Mr. Bero are survey experts. Second, Zurn argued that Mr. Flosi’s methodology in conducting his investigation was unscientific.

Zurn based its argument on Mr. Flosi’s description of his investigation as a survey and contended that he is not qualified to conduct or opine on a survey. The district court disagreed. “As Sloan correctly explains, Zurn’s argument rests on an incorrect definition of the word ‘survey.’ As described above, Mr. Flosi oversaw an investigation of bathrooms in approximately 200 building sites, which Sloan believed contained either Sloan or Zurn manual dual flush valves. He directed his investigators to take photographs of the plumbing fixtures in the first six bathrooms of each site that they accessed. He also instructed his investigators to complete a written log that documented the number and type of plumbing fixtures that they observed and photographed. This investigation matches one of the more general definitions of the word survey: ‘a general view, examination, or description of someone or something.'”

The district court found this challenge without merit. “Zurn’s challenge to Mr. Flosi’s qualifications is based on a definition of “survey” that does not apply to his work, but rather addresses “an investigation of the opinions or experience of a group of people, based on a series of questions.” (http://www.oxforddictionaries.com/us/definition/american_english/survey?q=survey. (last visited Mar. 3, 2014.) The cases that Zurn cites in support of its argument that Mr. Flosi is not a survey expert, all of which are not binding on this Court, address surveys that draw conclusions based on interviews of individuals. See Floorgraphics, Inc. v. News Am. Mktg. In-Store Servs., Inc., 546 F. Supp. 2d 155, 179 (D. N.J. 2008) (finding expert testimony inadmissible because expert drew conclusions from “executive interviews” that are in “direct contrast with the statements made by the interviewees”); Dukes v. Wal-Mart, 222 F.R.D. 189, 197 (N.D. Cal. 2004) (preventing expert from relying on interviews conducted by defendant’s attorneys); Yapp v. Union Pac. R. Co., 301 F. Supp. 2d 1030, 1036 (E.D. Mo. 2004) (rejecting expert’s attempt to rely on interviews that defense counsel selected and attended). This is clearly not the type of survey that Mr. Flosi conducted. Mr. Flosi and his investigators did not interview anyone and did not seek to elicit any opinions in the course of their investigation. They merely took photographs of and documented the plumbing fixtures in as many bathrooms as they could. Zurn’s challenge to Mr. Flosi’s qualifications, therefore, fails.”

The district court also disagreed with Zurn’s remaining challenges to the methodology that was employed and found that those were more suited to cross-examination. “Zurn’s remaining contentions regarding Mr. Flosi’s methodology are more appropriately addressed on cross-examination. Zurn argues that the following facts render Mr. Flosi’s investigation unreliable: (1) the list of sites that Sloan provided to Mr. Flosi was not randomly generated but rather compiled by Sloan’s sales representatives; (2) the sites that Mr. Flosi’s investigators visited were not randomly selected; (3) the sites that Mr. Flosi’s investigators visited were overwhelmingly publicly accessible buildings like schools and universities; and (4) Mr. Flosi’s investigators did not inspect every bathroom at each site and did not ensure that the bathrooms they did inspect adequately represented the site. (Mot. at 11.)”

The district court found that Zurn’s complaints regarding the factual portion of the investigation were not supported by the evidence. “As described above, Sloan’s sales representatives compiled the list that Mr. Flosi used to conduct his investigation because Sloan and Zurn do not have complete sales and installation records of every site that purchased MDF valves. (Resp. at 8.) Zurn can explore its concerns about a selection bias regarding these sites during cross-examination. (R. 697-15, 9/13/12 email.) Further, Zurn has not identified any evidence that indicates that Sloan selectively chose the sites it provided to Mr. Flosi. Similarly, Zurn does not cite any evidence of selection bias on the part of the Quest investigators with respect to the sites to which they gained access. Rather, Zurn acknowledges that the Quest investigators tried to visit all 200 sites. (Mot. at 11.) Finally, Zurn does not identify any evidence that the Quest investigators inspected the six bathrooms per site in a haphazard manner or that their selection of these six bathrooms did not represent the site. (Mot. at 11.)”

Stan Gibson, an experienced technology and IP trial lawyer, represents inventors, manufacturers, owners and others in litigation centering on complicated technology. Stan's practice is national in scope and he represents both plaintiffs and defendants and has litigated dozens of cases on behalf of his clients, taking many of them to trial. Although most cases settle, Stan's ability to take cases to trial enhances their value and drives favorable verdicts and settlements. Contact him at 310.201.3548 or SGibson@jmbm.com.

Greg Cordrey, an experienced patent litigator and former flight test engineer, represents a wide range of industries including medical device, computer, e-commerce, semiconductor, automotive, aircraft, and consumer products. He has litigated patent cases nationwide and has practiced before the Federal Circuit and the U.S. Patent and Trademark office as a registered patent attorney with experience in concurrent litigation and patent reexamination proceedings. Greg is recognized as one of the "Best Lawyers in America" in IP Law, as well as a "Super Lawyer" and "Rising Star." Contact him at 949.623.7236 or GCordrey@jmbm.com.

Rod Berman is recognized by the Daily Journal as one of the top 30 intellectual property attorneys in the State of California, and by the Los Angeles Business Journal as one of the top 100 attorneys in Los Angeles. Rod's practice focuses on patent, trademark, copyright, unfair competition and internet responsibilities and includes counseling, litigation, opinions, licensing and prosecution. In addition to being a registered patent attorney, Rod is a court-recognized expert in patent and trademark law, and has successfully argued before the Federal Circuit. Contact Rod at 310.201.3517 or RBerman@jmbm.com.

Andrew Shadoff, is a litigation associate who has assisted in prosecuting and defending patent infringement lawsuits involving mechanical devices. He has drafted successful summary judgment motions and pretrial motions in limine, and has assisted with trial and witness preparation. Contact him at 310.712.6856 or AShadoff@jmbm.com.

Joe Mellema's practice focuses on litigation in federal and state courts, including the protection and enforcement of intellectual property rights, and business and commercial disputes. He has handled patent, trademark, copyright, trade secret, unfair business practices, antitrust, and business and commercial lawsuits in all phases of litigation and arbitration. In addition to a law degree, he has dual degrees in electrical engineering and physical sciences, and was formerly a systems engineer at Raytheon Company. Contact him at 949.623.7232 or at JMellema@jmbm.com.

Rachel Capoccia

Rachel Capoccia focuses on technology-based litigation and counseling, with an emphasis on patent litigation, copyright litigation and other technology-related matters. Her legal experience is complemented by 10 years working at IBM as a software engineer before law school, during which she led a team of engineers who developed computer graphics software and computer aided design systems. She represents clients in all phases of patent infringement matters involving diverse areas of technology. Contact Rachel at 310.201.3521 or RCapoccia@jmbm.com.

Jessica Newman is a litigation associate, and a member of JMBM's Patent Litigation Group. She is involved in all aspects of litigation and has assisted in representing clients in a variety of industries with regards to patent infringement and copyright infringement issues. Contact her at 310.785.5372 or JNewman@jmbm.com.